Bonum Certa Men Certa

In the Courts, Where Patents Are Assessed Independently, Geeks Are Winning the Battle Against Parasitic Litigation Firms

All we see from the "big litigation" lobby these days is court- or judge-bashing

Trump and Iancu



Summary: Mockery of courts and disdain for the law come not from productive industries but from unproductive 'industries' that are doing nothing but patents and litigation; they have completely and undeniably lost the argument

LAST month we published the Internet Association's comments on the "Revised Patent Subject Matter Eligibility Guidance", which sought to work around or overcome 35 U.S.C. €§ 101 (similarly, bypassing the courts, EPO President António Campinos works around the EPC to grant software patents in Europe).



"The patent zealots have nothing left but court- or judge-bashing."There are troubling signs that the litigation lobby will try anything it takes to work around the law. Weeks ago we mentioned Coons et al coming back with their ludicrous (and old) pile of papers. TechDirt's founder has just commented on it, but we don't believe these comments are even necessary anymore. They have been trying it for years and it always fails. They keep renaming and rebranding the same pile of papers. This time too it's already off the headlines; completely. Like UPC.

In Mike Masnick's own words:

For most of the history of Techdirt, we've talked about what an incredible mess the US patent system has been. There are many, many reasons for this, but a big one was that for decades, the appeals court that handles all patent cases, the Court of Appeals for the Federal Circuit (or CAFC), kept expanding what it considered to be patentable subject matter, and the Supreme Court completely ignored the issue. This culminated, ridiculously, in the State Street decision, which massively expanded what was considered patentable software (before that there was software covered by patents, but it was very, very limited). What made this situation truly hellish for innovators, is that (1) the software world was exploding with all different kinds of apps, and (2) almost no software was documented in the very few areas where patent examiners look for prior art: mainly, other patent applications and scientific journals. There was no need to document software in those places, because (1) when most people recognized software shouldn't be patented, very few even tried, and (2) why would you?

That resulted in a perfect storm in which patent trolls rushed in to fill the void. Tons upon tons of ridiculously broad patents were filed (or older ones were dug up and "repurposed" for use in trolling). Then it just became a shakedown game of numbers. Find companies doing something vaguely like what's broadly and oddly described in your patent, tell them they're infringing -- and offer to "settle" for less than the cost to win in court.

The tide started to change over the last decade and a half or so, in part because of a few changes to the law, but more importantly, the Supreme Court started to wake up to the fact that the CAFC had gone rogue and had massively rewritten patent law. And then over a period of about a decade, case by case by case, the Supreme Court smacked down CAFC. Two of the biggest such smackdowns came in the Mayo Labs ruling in 2012 which rejected medical diagnostic patents, and the Alice ruling in 2014, which rejected patents on software that performs "generic functions" (which is basically all software).


The patent zealots have nothing left but court- or judge-bashing. We've just noticed that Paul Morinville is once again attacking US courts (in Watchtroll, as usual) just shortly after losing in the Federal Circuit (an appeal of a decision from the Patent Trial and Appeal Board (PTAB)). Watchtroll is a toxic site which attacks science and justice. We refuse to even link to it any longer. James Nurton (formerly of think tank Managing IP, now writing in Watchtroll) has a new headline there: "Iancu Calls on Federal Circuit to Fix Section 101 Problem" (Iancu the Trump flunky is just another Battistelli, wrongly thinking he 'bosses' the courts). Curiously enough, corporate media, especially in the US, loves talking about corrupt Trump appointments... except that of Iancu, whose firm had worked for Trump before he got the job at the U.S. Patent and Trademark Office (USPTO). Nurton, as it turns out, cites a think tank of litigators, funded by corporations like Microsoft. "Speaking at the 27th Intellectual Property Law & Policy Conference at Fordham Law School on April 25, Mr. Iancu said the interpretation of Section 101 is “the most important issue of substantive patent law currently”..."

Bristows (Annsley Merelle Ward) is still writing about it in IP Kat (twice more yesterday [1, 2]), pushing the agenda of patent trolls and law firms, as usual. And Managing IP is, as usual, only asking lawyers (of trolls in this case, an Ericsson proxy) for their views on Unwired Planet v Huawei. "By taking a FRAND showdown between Unwired Planet and Huawei," said the summary, "the UK Supreme Court can show that it’s not afraid to make bold decisions on global disputes if others won’t, lawyers tell Managing IP..."

They never bother asking technical people. When James Nurton worked there they were doing lots of puff pieces for him, including UPC propaganda and 'interviews' with softball questions.

In more positive news, Josh Landau (CCIA) says there's a bill in the making to discourage patent trolls. Massachusetts State Sen. Eric "Lesser and Ehrlich hope to protect innovation against fraudulent and bad faith assertions," he wrote yesterday. This one would actually protect technical people:

Across the United States, two-thirds of all states have introduced legislation that targets bad faith patent assertion by entities like MPHJ and Shipping and Transit. Massachusetts State Sen. Eric Lesser and State Rep. Lori Ehrlich are trying to make Massachusetts the most recent state to join this club.

Lesser and Ehrlich recently re-introduced their bad faith assertion bill that would allow victims of bad faith patent assertions to recover reasonable attorney’s fees and other costs incurred in defending themselves from a bad faith assertion. By allowing recovery of defense fees against these sorts of plaintiffs, Lesser and Ehrlich hope to protect innovation against fraudulent and bad faith assertions.


As usual, there's a silent war between technical people and lawyers in "Home of the Brave" (where you have to be brave to create something as extortion may be around the corner). At the moment geeks have the upper hand.

Recent Techrights' Posts

Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Not Just Slow News But Also Late News (Julian Assange Landing in Thailand)
Why did AP take so long (nearly a week) to release these?
[Meme] Smart Alec Poettering
How many Microsofters can the Debian Project withstand?
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
 
200 This Week
Monday started with 40 articles/pages and this is #200
Press Complicity and Public Apathy All Along Enabled 14 Years of Illegal, Arbitrary Detention and Coercion Into Plea Bargain of Julian Assange on Brink of Death
They basically blackmailed him into letting the US 'win' the argument
At the End Journalism a Crime (If It Involves Accessing or Gaining Access to Documents Marked "Confidential" or "Classified" by Those Looking to Hide Their Misconduct/Crimes)
At least in the US, especially where the imperialism is at stake
Links 30/06/2024: Tensions in Korea and Japan, Criminalisation of Sleeping Outdoors
Links for the day
100% Slop/Spam From linuxsecurity.com
This is the kind of stuff that's killing the Web faster
Gemini Links 30/06/2024: Murdoch and Ideal OS
Links for the day
In the First 6 Months of 2024 Thailand Moved to GNU/Linux, Not to Windows Vista 11
maybe users moved from Vista 10 and 11 to GNU/Linux, seeing where Microsoft was heading with forced hardware "upgrades"
Eko K. A. Owen, New Outreach and Communications Coordinator for the FSF
Nice to see many new additions to the FSF's team
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock